Anthony Girdler
[2022] FWC 2748
•19 OCTOBER 2022
| [2022] FWC 2748 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Anthony Girdler
(AM2022/16)
| Fast food industry | |
| COMMISSIONER LEE | MELBOURNE, 19 OCTOBER 2022 |
Application to vary a modern award – Fast Food Industry Award – special clothing laundry allowance – transport allowance – failure of applicant to engage in Commission proceedings – consideration of s.587 of the Fair Work Act 2009 – application dismissed.
Introduction
Mr Anthony Girdler (the Applicant) has made an application pursuant to s.158 of the Fair Work Act 2009 (FW Act) to vary the Fast Food Industry Award 2010.[1]
The Applicant seeks for the Commission to make the following variations:
· by inserting a new subsection 19.2(c) (now 17.5(c)) to clarify that, where an employer has provided laundry facilities for staff to use, use of these facilities by an employee shall be optional; and
· by increasing the transport allowance in clause 19.6(b) (now 17.8(a)) from $0.42 to $0.63 as a result of the increased cost of fuel and running expenses of motor vehicles.[2]
Procedural history
The matter was listed for mention at 2pm on 22 July 2022. The listing was sent by email to the Applicant and posted on the FWC website. The Applicant did not appear at the mention.
An email was sent to the Applicant on 22 July 2022, asking him to advise by not later than close of business on 28 July 2022, whether he intended to proceed with the application. No response was received from the Applicant.
A further email was sent to the Applicant on 29 July 2022, indicating that no response had yet been received and requesting that the Applicant provide a response by no later than close of business on 5 August 2022.
The Applicant did not respond to the further email or made any contact with the Commission regarding his application.
On 30 September 2022 I issued a Statement[3] (September Statement) putting the Applicant on notice that s.587(1)(c) of the FW Act provides that the Commission may dismiss an application that has ‘no reasonable prosects of success’. It may do so on its own initiative pursuant to s.587(3)(a). The September Statement was emailed to the Applicant and published on the Commission’s website.
In the September Statement, I indicated that as the Applicant had failed to attend the mention and had not responded to the correspondences referred to above, I may exercise the Commission’s discretion to dismiss the application. The Applicant was invited to provide any submissions as to why his application should not be dismissed by 7 October 2022. No response was received from the Applicant.
Legal framework
Section 587 of the FW Act provides:
“587 Dismissing applications
(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:
(a) the application is not made in accordance with this Act; or
(b) the application is frivolous or vexatious; or
(c) the application has no reasonable prospects of success.
Note: For another power of the FWC to dismiss an application for a remedy for unfair dismissal made under Division 5 of Part 3‑2, see section 399A.
(2) Despite paragraphs (1)(b) and (c), the FWC must not dismiss an application under section 365 or 773 on the ground that the application:
(a) is frivolous or vexatious; or
(b) has no reasonable prospects of success.
(3) The FWC may dismiss an application:
(a) on its own initiative; or
(b) on application.”
In Sayer v Melsteel P/L[4] a Full Bench considered whether to grant permission to appeal a decision dismissing an application for an unfair dismissal remedy under s.394 of the FW Act.[5] The appellant’s unfair dismissal application had been dismissed after the appellant failed to attend a hearing and the Commissioner had proceeded to determine the application in their absence. The Commissioner accepted the case put by the respondent on the basis that there was no contrary evidence. The Full Bench observed:
“[9] …When an applicant does not take the opportunity provided to prosecute their application, the application will usually fail. It is difficult to envisage circumstances in which it could be otherwise.”
While the Commissioner determining the appellant’s unfair dismissal application did not utilise the dismissal powers under s.587 of the FW Act, the Full Bench in Sayer v Melsteel P/L observed that the power can be exercised without examining the merits of an application:
“[19] For completeness we point out that s.587(1) provides for the dismissal of an application. In this case it would have been consistent with this provision to dismiss the application without examining the merits.”
Consideration
As set out at [3] to [8] of this Decision, the Applicant has not taken the opportunities provided by the Commission to him to prosecute his application. I find that the Applicant has failed to respond to the Commission’s attempts to engage with him and in doing so has shown no willingness to prosecute his case.
As held in Sayer v Melsteel P/L, the Commission can exercise its dismissal power under s.587(1) of the FW Act without examining the merits of the application being dismissed.
In the circumstances, I have decided to exercise my discretion to dismiss the application for want of prosecution pursuant to s.587(3)(a) of the Act.
Consequently, the application is dismissed. An order dismissing the application will be issued with this Decision.
COMMISSIONER
[1] On 11 July 2022, the Fast Food Industry Award 2010 was substantially varied and renamed the Fast Food Industry Award 2020, with effect from 28 July 2022.
[2] The motor vehicle allowance for employees engaged primarily to deliver an employer’s products using their own motor
vehicle increased from $0.42 to $0.48 on 1 July 2022 following the 2021-22 Annual Wage Review. See PR740849.
[3] [2022] FWC 2642
[4] [2011] FWAFB 7498
[5] [2011] FWA 4373
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